Citation Nr: 0306213
Decision Date: 04/01/03 Archive Date: 04/10/03
DOCKET NO. 01-01 334 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to service connection for a headache disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
James A. Frost, Counsel
INTRODUCTION
The veteran served on active duty from December 1956 to
November 1958.
This appeal to the Board of Veterans' Appeals (Board) arises
from a rating decision in July 2000 by the Indianapolis,
Indiana, Regional Office (RO of the Department of Veterans
Affairs (VA).
FINDINGS OF FACT
1. The veteran had onset of headaches during active service.
2. He has had headaches on a continuing basis since
separation from service.
CONCLUSION OF LAW
With resolution of reasonable doubt, a headache disorder was
incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002);
38 C.F.R. § 3.303 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that, on November 9, 2000, the Veterans
Claims Assistance Act of 2000 (VCAA) became law. The VCAA
applies to all pending claims for VA benefits and provides
that VA shall make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate the claimant's
claim for a benefit under a law administered by VA. The VCAA
also provides that VA shall notify the claimant of any
information, and any medical or lay evidence not previously
provided to VA, which is necessary to substantiate the claim
and whether VA or the claimant is expected to obtain any such
evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). In the instant case, the Board finds that VA has
complied with the requirements of the statute. The veteran
has not identified any evidence which may be pertinent to his
claim which the RO has not obtained and considered. The RO
notified the veteran of the requirements in law to establish
entitlement to the benefit which the veteran is seeking.
Because this decision grants the veteran's claim, further
evidence to substantiate the claim is not needed. The Board
concludes that all reasonable efforts were made by VA to
obtain evidence necessary to substantiate the veteran's claim
and that the notice provisions of the VCAA have been complied
with. The Board finds that there will be no prejudice to the
veteran if the Board decides his appeal at this time and the
Board will, therefore, proceed to consider the veteran's
claim on the merits. See Veterans Claims Assistance Act of
2000, 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§
3.102, 3.156(a), 3.159, and 3.326(a) (2002); see also Bernard
v. Brown, 4 Vet. App. 384, 394 (1993).
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if preexisting such service, was
aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38
C.F.R. § 3.303(a) (2002). Service connection may be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R.
§ 3.303(d) (2002).
A regulation pertaining to chronicity and continuity provides
that, with chronic disease shown as such in service so as to
permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date,
however remote, are service connected, unless clearly
attributable to intercurrent causes. This rule does not mean
that any manifestation of joint pain, any abnormality of
heart action or heart sounds, any urinary findings of casts,
or any cough, in service will permit service connection of
arthritis, disease of the heart, nephritis, or pulmonary
disease, first shown as a clearcut clinical entity, at some
later date. For the showing of chronic disease in service
there is required a combination of manifestations sufficient
to identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"Chronic." When the disease identity is established
(leprosy, tuberculosis, multiple sclerosis, etc.), there is
no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (2002).
In a case before VA with respect to benefits under laws
administered by VA, the law provides that VA shall consider
all information and lay and medical evidence of record. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, VA shall give the benefit of the doubt to the
claimant. 38 U.S.C.A. § 5107(b) (West 2002). The United
States Court of Appeals for Veterans Claims (Court) has held
that, when a veteran's service medical records are presumed
to have been destroyed, the Board has a heightened obligation
to explain its findings and conclusions and to consider
carefully the benefit-of-the-doubt rule. See O'Hare v.
Derwinski, 1 Vet. App. 365, 367 (1991).
In the veteran's case, in October 2002, the National
Personnel Records Center reported to the RO that the
veteran's service medical records were presumed to have been
destroyed at that facility in a fire in 1973 and that no
Office of the Surgeon General or sick reports were found for
the veteran. The Board thus has a heightened duty to
consider the benefit of the doubt doctrine. O'Hare, supra.
In May 2000, the veteran asserted a claim of entitlement to
service connection for a headache disorder. He stated at
that time that: in service in Korea in 1957, he suddenly
developed extremely painful headaches, for which he
hospitalized for a period of 3 days; X-rays and a
psychiatric evaluation were negative; the impressions
included "migraine and sinus from exposure to the extreme
cold"; for many years, he used over-the-counter drugs for
headaches; and he had been treated by VA from time to time
with medication for headaches.
The veteran submitted records from a private hospital, which
showed that he was seen in the emergency room in August 1982
for severe headaches. A CT scan of his head was negative.
The discharge diagnosis was headache, etiology not
determined.
VA outpatient treatment records from 1991 to 2001 show
continuing treatment for headaches. In February 2000, it was
noted that the veteran was having headaches twice a week.
In January 2001, the veteran's wife stated that: she dated
the veteran for 6 years before he entered service; he had no
headaches prior to his service; in Korea, he spent time in a
hospital for severe headaches; when he was released from
service, he had almost daily headaches; a CT scan did not
find a reason for his headaches; he still had headaches,
which had caused medical expenses and loss of wages.
The Board finds that the statements by the veteran and his
wife concerning his headaches are credible and constitute
positive evidence tending to show onset of a headache
disorder during his period of active service and continuity
of symptomatology of headaches since his separation from
service in November 1958. The lack of evidence demonstrating
continuous treatment for headaches since November 1958
constitutes negative evidence, even though the standard for
service connection based on chronicity is continuity of
symptomatology and not continuity of treatment. Under
38 C.F.R. § 5107(b) (West 2002) and the holding of the Court
in O'Hare, the Board finds that there is an approximate
balance of positive and negative evidence on the issue of
whether the veteran has had headaches continuously since his
separation from service. Resolving the doubt on that issue
in the veteran's favor, entitlement to service connection for
a headache disorder is established. 38 U.S.C.A. §§ 1131,
5107 (West 2002); 38 C.F.R. § 3.303 (2002).
ORDER
Service connection for a headache disorder is granted.
____________________________________________
F. Judge Flowers
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.